The United States has had antitrust legislation at the federal and state level for more than 100 years. (The Sherman Antitrust Act [1890] and the Federal Trade Commission Act [1914] are the basic federal statutes.) The laws make illegal "every contract, combination … or conspiracy in restraint of trade" and any attempt to "monopolize" through merger or acquisition; in addition, "unfair … and deceptive practices" are also forbidden. Given this broad regulatory mandate, antitrust law is arguably this nation's oldest ad hoc "industrial policy." But whether any of this regulation has ever made economic sense is entirely debatable.

Two recent legal developments illustrate the ongoing ambiguity of antitrust policy. The first involves the Supreme Court decision (Leegin Creative Leather Products v. PSKS, Inc., 2007) to allow manufacturers to set and enforce minimum prices, a practice knows as resale price maintenance. This decision breaks with decades of precedent and has been hailed generally as a step toward a more rational antitrust policy.The second development is the attempt by the Federal Trade Commission to block Whole Foods, Inc. from acquiring the Wild Oats company. But unlike the Supreme Court decision above, the FTC's action has been widely ridiculed as an exercise in pure regulatory nonsense. Indeed, a district court judge recently denied a preliminary injunction against the merger.